NARENDRA KUMAR TIWARI & ORS. ETC. versus THE STATE OF JHARKHAND & ORS. ETC. on 1 August 2018

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SUPREME COURT REPORTS

[2018] 9 S.C.R.

ANARENDRA KUMAR TIWARI & ORS. ETC.

v.

THE STATE OF JHARKHAND & ORS. ETC.

(Civil Appeal Nos. 7423-7429 of 2018)

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AUGUST 01, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Service Law – Regularisation of daily wage or contractworkers – Appellants were irregularly appointed by the State ofJharkhand – Plea of Appellants that they had put in more than 10Cyears of service and therefore were entitled to be regularised – Plearejected by the High Court – Further, High Court took the view thatthe decision of the Supreme Court in Umadevi (3) case did notpermit regularisation of appellants since they had not worked for10 years on the cut-off date of 10.04.2006 when the ConstitutionDBench rendered its decision – Held: High Court erred in taking animpractical view of the directions in case of Umadevi (3) – Thepurpose and intent of the decision in Umadevi(3) was to preventirregular or illegal appointments in the future and further to confera benefit on those who had been irregularly appointed in the past –A strict and literal interpretation of Umadevi(3), withoutEconsidering the spirit of the decision would make regularisation ofthe irregular employees very difficult since the State of Jharkhandcame into existence only on 15.11.2000 and cut-off date was fixedas 10.04.2006 – Thus, the Regularisation Rules must be given apragmatic interpretation and appellants, if they had completed 10Fyears of service on the date of promulgation of the RegularisationRules, ought to be given the benefit of the service rendered by them– Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt EwamKaryat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015.

Disposing of the appeals, the Court

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HELD: 1. The decision in Secretary, State of Karnataka andOrs. v. Umadevi (3) and Ors. was intended to put a full stop to thesomewhat pernicious practice of irregularly or illegally appointingdaily wage workers and continuing with them indefinitely. Thepurpose and intent of the decision in Umadevi(3) was thereforeHtwo-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who hadbeen irregularly appointed in the past. The fact that the State ofJharkhand continued with the irregular appointments for almosta decade after the decision in Umadevi(3) is a clear indicationthat it believes that it was all right to continue with irregularappointments, and whenever required, terminate the services ofthe irregularly appointed employees on the ground that they wereirregularly appointed. This is nothing but a form of exploitationof the employees by not giving them the benefits of regularisationand by placing the sword of Damocles over their head. This isprecisely what Umadevi (3) and Kesari sought to avoid.[Paras 6, 8] [415-D; 417-B-D]

2. If a strict and literal interpretation, forgetting the spiritof the decision of the Constitution Bench in Umadevi (3), is to betaken into consideration then no irregularly appointed employeeof the State of Jharkhand could ever be regularised since thatState came into existence only on 15[th] November, 2000 and thecut-off date was fixed as 10[th] April, 2006. In other words, in thismanner the pernicious practice of indefinitely continuingirregularly appointed employees would be perpetuated contraryto the intent of the Constitution Bench. [Para 9] [417-E-F]

3. Under the circumstances, the Jharkhand RegularisationRules of 2015 must be given a pragmatic interpretation and theappellants, if they have completed 10 years of service on thedate of promulgation of the Regularisation Rules, ought to begiven the benefit of the service rendered by them. If they havecompleted 10 years of service they should be regularised unlessthere is some valid objection to their regularisation likemisconduct etc. [Para 11] [417-G-H; 418-A-B]

Secretary, State of Karnataka and Ors. v. Umadevi(3)and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 ;Umadevi(3) in State of Karnataka and Ors. v. M.L.Kesari and Ors. (2010) 9 SCC 247 : [2010] 9 SCR543 – referred to.

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ACIVIL APPELLATE JURISDICTION : Civil AppealNos. 7423-7429 of 2018.

From the Judgment and Order dated 08.11.2016 of the High Courtof Jharkhand at Ranchi in W.P. (S) No. 4019/2015, 4021/2015,4126/2015, 4127/2015, 1512/2016, 1530/2016 and 1932/2016.

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Rana Mukherjee, Sr. Adv., Kumar Anurag Singh, Kumar Shivam,Ms. Stuti Vatsa, Ms. Tulika Mukherjee, Gopal Prasad, Advs. for theappearing parties.

The Judgment of the Court was delivered by CMADAN B. LOKUR, J. 1. Leave granted.

2. These appeals arise out of the common judgment and orderdated 17[th] November, 2016 passed by a Division Bench of the HighCourt of Jharkhand in a batch of writ petitions relating to the regularisationof daily wage or contract workers on different posts. The writ petitionersD(now appellants) were denied the benefit of regularisation in view of theprovisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se NiyuktEwam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015(hereinafter referred to as the Regularisation Rules).

3. The admitted position is that the appellants are irregularlyappointed employees of the State Government. They soughtEregularisation of their status on the ground that they had put in more than10 years of service and were therefore entitled to be regularised. TheHigh Court took the view that the decision of the Constitution Bench ofthis Court in Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors.[1 ]did not permit their regularisation since they had not workedFfor 10 years on the cut-off date of 10[th] April, 2006 when the ConstitutionBench rendered its decision. According to the High Court, theRegularisation Rules provided a one-time measure of regularisation ofthe services of irregularly appointed employees based on the cut-offdate of 10[th] April, 2006 in terms of the judgment of the ConstitutionBench. Therefore, since the appellants had not put in 10 years of serviceGthey could not be regularised.

4. The appellants had contended before the High Court that theState of Jharkhand was created only on 15[th] November, 2000 andtherefore no one could have completed 10 years of service with the1(2006) 4 SCC 1H

State of Jharkhand on the cut-off date of 10[th] April, 2006. Therefore, noone could get the benefit of the Regularisation Rules which made theentire legislative exercise totally meaningless. The appellants had pointedout in the High Court that the State had issued Resolutions on 18[th] July,2009 and 19[th] July, 2009 permitting the regularisation of some employeesof the State, who had obviously not put in 10 years of service with theState. Consequently, it was submitted that the appellants werediscriminated against for no fault of theirs and in an irrational manner.

5. Having heard learned counsel for the parties and havingconsidered the decision of the Constitution Bench in Umadevi (3) aswell as the subsequent decision of this Court explaining Umadevi(3) inState of Karnataka and Ors. v. M.L. Kesari and Ors.[2], we are of theview that the High Court has erred in taking an impractical view of thedirections in Umadevi (3) as well as its consideration in Kesari.

6. The decision in Umadevi(3) was intended to put a full stop tothe somewhat pernicious practice of irregularly or illegally appointingdaily wage workers and continuing with them indefinitely. In fact, inparagraph 49 of the Report, it was pointed out that the rule of law requiresappointments to be made in a constitutional manner and the State cannotbe permitted to perpetuate an irregularity in the matter of publicemployment which would adversely affect those who could be employedin terms of the constitutional scheme. It is for this reason that the conceptof a one-time measure and a cut-off date was introduced in the hopeand expectation that the State would cease and desist from makingirregular or illegal appointments and instead make appointments on aregular basis.

7. The concept of a one-time measure was further explained inKesari in paragraphs 9, 10 and 11 of the Report which read as follows:

“9. The term “one-time measure” has to be understood in its properperspective. This would normally mean that after the decision inUmadevi (3), each department or each instrumentality shouldundertake a one-time exercise and prepare a list of all casual,daily-wage or ad hoc employees who have been working for morethan ten years without the intervention of courts and tribunals andsubject them to a process verification as to whether they areworking against vacant posts and possess the requisite qualificationfor the post and if so, regularise their services.

2(2010) 9 SCC 247

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10. At the end of six months from the date of decision in Umadevi(3), cases of several daily-wage/ad hoc/casual employees werestill pending before courts. Consequently, several departments andinstrumentalities did not commence the one-time regularisationprocess. On the other hand, some government departments orinstrumentalities undertook the one-time exercise excluding severalemployees from consideration either on the ground that their caseswere pending in courts or due to sheer oversight. In suchcircumstances, the employees who were entitled to be consideredin terms of para 53 of the decision in Umadevi (3), will not losetheir right to be considered for regularisation, merely because theone-time exercise was completed without considering their cases,or because the six-month period mentioned in para 53 of Umadevi(3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years ofcontinuous service as on 10-4-2006 without availing the protectionof any interim orders of courts or tribunals. If any employer hadheld the one-time exercise in terms of para 53 of Umadevi (3),but did not consider the cases of some employees who were entitledto the benefit of para 53 of Umadevi (3), the employer concernedshould consider their cases also, as a continuation of the one-timeexercise. The one-time exercise will be concluded only when allthe employees who are entitled to be considered in terms of para53 of Umadevi (3), are so considered.

11. The object behind the said direction in para 53 of Umadevi (3)is twofold. First is to ensure that those who have put in more thanten years of continuous service without the protection of any interimorders of courts or tribunals, before the date of decision in Umadevi(3) was rendered, are considered for regularisation in view oftheir long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employingpersons on daily-wage/ad hoc/casual basis for long periods andthen periodically regularise them on the ground that they haveserved for more than ten years, thereby defeating the constitutionalor statutory provisions relating to recruitment and appointment.The true effect of the direction is that all persons who have workedfor more than ten years as on 10-4-2006 [the date of decision inUmadevi (3)] without the protection of any interim order of anycourt or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. Thefact that the employer has not undertaken such exercise ofregularisation within six months of the decision in Umadevi (3) orthat such exercise was undertaken only in regard to a limited few,will not disentitle such employees, the right to be considered forregularisation in terms of the above directions in Umadevi (3) asa one-time measure.”

8. The purpose and intent of the decision in Umadevi(3) wastherefore two-fold, namely, to prevent irregular or illegal appointmentsin the future and secondly, to confer a benefit on those who had beenirregularly appointed in the past. The fact that the State of Jharkhandcontinued with the irregular appointments for almost a decade after thedecision in Umadevi(3) is a clear indication that it believes that it wasall right to continue with irregular appointments, and whenever required,terminate the services of the irregularly appointed employees on theground that they were irregularly appointed. This is nothing but a formof exploitation of the employees by not giving them the benefits ofregularisation and by placing the sword of Damocles over their head.This is precisely what Umadevi (3) and Kesari sought to avoid.

9. If a strict and literal interpretation, forgetting the spirit of thedecision of the Constitution Bench in Umadevi (3), is to be taken intoconsideration then no irregularly appointed employee of the State ofJharkhand could ever be regularised since that State came into existenceonly on 15[th] November, 2000 and the cut-off date was fixed as 10[th]April, 2006. In other words, in this manner the pernicious practice ofindefinitely continuing irregularly appointed employees would beperpetuated contrary to the intent of the Constitution Bench.

10. The High Court as well as the State of Jharkhand ought tohave considered the entire issue in a contextual perspective and not onlyfrom the point of view of the interest of the State, financial or otherwise– the interest of the employees is also required to be kept in mind. Whathas eventually been achieved by the State of Jharkhand is to short circuitthe process of regular appointments and instead make appointments onan irregular basis. This is hardly good governance.

11. Under the circumstances, we are of the view that theRegularisation Rules must be given a pragmatic interpretation and theappellants, if they have completed 10 years of service on the date of AB

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Apromulgation of the Regularisation Rules, ought to be given the benefitof the service rendered by them. If they have completed 10 years ofservice they should be regularised unless there is some valid objection totheir regularisation like misconduct etc.

12. The impugned judgment and order passed by the High CourtBis set aside in view of our conclusions. The State should take a decisionwithin four months from today on regularisation of the status of theappellants.

13. The appeals are accordingly disposed of.

14. We may add that that it would be worthwhile for the State ofCJharkhand to henceforth consider making regular appointments only anddropping the idea of making irregular appointments so as to short circuitthe process of regular appointments.

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Ankit Gyan

Appeals disposed of.

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